Galina Medvedeva v. City of Kirkland ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GALINA MEDVEDEVA, No. 15-35750
Plaintiff-Appellant, D.C. No. 2:14-cv-00007-RSL
v.
MEMORANDUM*
CITY OF KIRKLAND, Washington; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted December 7, 2017
Seattle, Washington
Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.
Galina Medvedeva appeals from the district court’s dismissal of her
unlawful arrest and First Amendment retaliation claims, and challenges the district
court’s jury instructions for her Americans with Disabilities Act (“ADA”) and
excessive force claims. Because the parties are familiar with the facts, we do not
recite them here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I. Unlawful Arrest
We review de novo a district court’s grant of summary judgment. Whitman
v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). Medvedeva acknowledges that the
officers had a right to enter the apartment. Medvedeva also does not dispute that
the officers informed her that they needed to enter to investigate a leak; that,
despite being informed of this, she failed to open the front door for approximately
forty minutes; or that, once the officers entered the apartment using a master key,
she attempted to close the bathroom door to keep the officers out. Given
Medvedeva’s failure to open the front door and her resistance once the officers
entered the apartment, “a prudent person would have concluded that there was a
fair probability” that Medvedeva had hindered, delayed, or obstructed the officers.
Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991) (quoting United States v.
Smith, 790 F.2d 789, 792 (9th Cir. 1986)). Therefore, the officers had probable
cause to arrest Medvedeva for obstruction. See Wash. Rev. Code § 9A.76.020.
The district court did not err in dismissing Medvedeva’s unlawful arrest claim on
summary judgment.
II. First Amendment Retaliation
“[T]he First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461
(1987). However, “a simple failure to obey a police officer’s lawful instructions”
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is not protected by the First Amendment. See Young v. Cty. of Los Angeles, 655
F.3d 1156, 1170 (9th Cir. 2011). Medvedeva’s conduct was not expressive
conduct protected by the First Amendment, but rather a simple failure to obey
lawful instructions. See id. The district court did not err in dismissing
Medvedeva’s First Amendment retaliation claim on summary judgment.
III. ADA Jury Instructions
We review a district court’s formulation of jury instructions for abuse of
discretion, and we review de novo whether an instruction states the law correctly.
See Peralta v. Dillard, 744 F.3d 1076, 1082 (9th Cir. 2014) (en banc). “Jury
instructions must correctly state the law and failure to do so warrants reversal,
unless the error is harmless.” Coles v. Eagle, 704 F.3d 624, 630 (9th Cir. 2012).
A claim for reasonable accommodation under Title II of the ADA arises
when, “although police properly investigate and arrest a person with a disability for
a crime unrelated to that disability, they fail to reasonably accommodate the
person’s disability in the course of investigation or arrest, causing the person to
suffer greater injury or indignity in that process than other arrestees.” Sheehan v.
City & Cty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part
on other grounds, cert. dismissed in part, 135 S. Ct. 1765 (2015). The jury
instructions for Medvedeva’s reasonable accommodation claim required the jury to
find that Medvedeva was “unable to comply” with the officers because of her
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disability, and that the officers could have made a reasonable accommodation that
would have enabled her to comply with the officers’ commands.
As the district court acknowledged during trial, the inability to comply with
officers due to a disability is not always a required element of a reasonable
accommodation claim. In this instance, however, the district court formulated the
jury instructions by taking into account the factual circumstances surrounding the
arrest and Medvedeva’s theory of the case. The district court had extensive
discussions with counsel about the instructions and explained the rationale for the
ADA instruction in view of the specific facts here. The district court threaded the
needle by integrating the specific facts and arguments of the case into the
instructions. Although excluding the inability-to-comply segments from the jury
instructions may have been a better fit, the district court did not err by including
them. To the extent there was any error, such error was harmless given
Medvedeva’s opportunity to fully argue her theory of the case. The district court
did not err in its jury instructions for Medvedeva’s reasonable accommodation
claim.
IV. Excessive Force Jury Instructions
Excessive force claims are analyzed under the reasonableness standard of
the Fourth Amendment. See Hung Lam v. City of San Jose, 869 F.3d 1077, 1087
(9th Cir. 2017). We have upheld “fairly general reasonableness/ totality of the
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circumstances instructions” in excessive force cases. Brewer v. City of Napa, 210
F.3d 1093, 1097 (9th Cir. 2000) (citation and internal quotation marks omitted).
The jury instructions for Medvedeva’s excessive force claim instructed the jury to
consider “all of the circumstances known to the officers on the scene,” and
specifically highlighted the amount of force used against Medvedeva and whether
she posed an immediate threat to the officers’ safety. Although there was no
specific instruction about the relative size difference between Medvedeva and the
officers, whether the officers gave verbal warnings before using force, and whether
the officers knew of Medvedeva’s mental illness, the district court was not required
to list every item requested by Medvedeva. The jury instructions correctly directed
the jury to consider the totality of the circumstances and allowed Medvedeva to
argue her theory of the case. She in fact did argue these points at trial. The district
court did not err in its jury instructions for Medvedeva’s excessive force claim.
AFFIRMED.
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